Here the petition is contradictory as to whether there is a landlord-tenant relationship.
On the one hand, the petition refers to respondent as the "permittee" and states that the parties entered into a written permit. The "itemized rent history" annexed to the petition details "permit fees," among other charges, allegedly due. On the other hand, the petition alleges that "rent" has been demanded from respondent by way of the three-day notice. Rent is generally the enumeration paid by a tenant not a licensee or "permittee" who pays license or permit fees.
These contradictory statements within the petition deprive the court and respondent of sufficient notice under the circumstances of petitioner's claim against respondent. See Kabir v Limbert, 47 Misc.
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However, if respondent is not a tenant then petitioner must initiate an action under RPAPL and must serve a day predicate notice. The contradictory claims in the petition regarding "Respondent's interest in the premises and [its] relationship to petitioner with regard thereto" provide an insufficient basis upon which a default judgment may be entered against respondent.
RPAPL § 1304
See Brusco, 84 NY2d at Moreover, because the petition fails to meet the requirements of RPAPL , dismissal of the petition is required. Accordingly, it is hereby ordered that petitioner's request for a default judgment is denied in its entirety and the petition is dismissed without prejudice. Listed below are the cases that are cited in this Featured Case.
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Your Email. When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought.
Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry. Sakele Bros. Sunrise Jewish Ctr. Stream, Inc. Thus, the fact that petitioner created the problem by building within one inch of the line has no bearing. Chase Manhattan Bank Nat. The statute does not direct the court to grant a license to every applicant.
In accordance with the foregoing principles of law, it should be granted only when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused.
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Joray Holding Co. In effect, it is no more than a codification of the well settled principles of jurisprudence expounded by the courts of this state and in other jurisdictions dealing with conflicting interests of adjacent property owners. We reject that contention. Chase Manhattan Bank [Natl. Stream ,61 Misc 2d at Deutsche Bank Tr.
Consequently, unless the court has the authority to grant licenses in appropriate cases, buildings could lose their value or utility, for want of an ability to make improvements or repairs. The possible result could be urban blight. Lipko, supra. Constructing a new building at the site is certainly an improvement which will enhance the value of the lot. Rosma Development LLC v. South , 5 Misc. The statute does not limit improvements to existing structures. More importantly, in many circumstances, demolition, whether it be partial or complete, is a necessary element of making improvements to property.
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LLC v Spring St. See also R. Lincoln Spencer Apartments, Inc. Tenants Corp. Mindel v Phoenix Owners Corp. Amalgamated Dwellings, Inc. Realty Assoc. Defendants could have sought a license for the use of airspace during the installation of each sign see RPAPL At that time, if appropriate, plaintiff could have requested injunctive relief. Defendants acknowledge that RPAPL provides a mechanism for adjoining landowners to seek court intervention to make improvements to their premises which by necessity require entry on to a neighboring property, when permission to do so has been refused.
Upon the institution of a special proceeding, a court in an appropriate case, may grant a license upon such terms as are just. See, McMullan v. HRH Constr. Lum , 16 AD3d . Here, as in McMullan, defendants have declined to pursue available legal remedies. Plaintiffs have, therefore, established a clear right to relief McMullan v. Further, if the Court were to convert this matter, the Court would find that just terms require that no license fee be imposed.
First, the Court finds that defendant has acted in good faith and has erected the sidewalk shed not because it simply wished to perform repairs, but because it was required to do so. The regulation that requires the sidewalk bridge, specifically requires that certain cutouts and provision for access be made. The regulation clearly made provision for the avoidance of interference and required the sidewalk shed to be extend 20 feet towards and within one inch of an adjacent building, without requiring any form of compensation.
Further, in seeking the conversion, plaintiff has not specified any damages that it will suffer. Thus, plaintiff has no loss of enjoyment to its property. Queens Coll. Special Projects Fund, Inc.